Holland v. Heavlin, Motion No. 478.

• Citation: 300 N.W. 777,299 Mich. 465
• Decision Date: 18 November 1941
• Docket Number: Motion No. 478.
• Parties: HOLLAND, Mayor, et al. v. HEAVLIN, City Clerk.
• Court: Supreme Court of Michigan

299 Mich. 465

300 N.W. 777

HOLLAND, Mayor, et al.

v.HEAVLIN, City Clerk.^*

Motion No. 478.

Supreme Court of Michigan.

Nov. 18, 1941.

Mandamus proceeding by Robert C. Holland and others, as Mayor and members of the Council of the City of Garden City, against Carl Heavlin, Clerk of the City of Garden City.

Writ of mandamus granted.

Argued before the Entire Bench.

Berry & Stevens, of Detroit (Claude H. Stevens, of Detroit, of counsel), for plaintiff.

Tinkham & Snyder, of Wayne, for defendant.

Miller, Canfield, Paddock & Stone, of Detroit, amici curiae.

SHARPE, Chief Justice.

Plaintiffs are respectively the mayor and members of the council of the city of Garden City. They seek a writ of mandamus directing the defendant, clerk of the city of Garden City, to execute ‘Water Supply and Sewage Disposal System Revenue Bonds, Series A,’ aggregating the principal sum of $400,000 as directed by the provisions of Ordinance No. 46 of said city.

The facts in this case are not in dispute. The city of Garden City is successor to the Village of Garden City, which was reincorporated as a home rule city in 1933. On July 15, 1929, at a special election, the electors of the Village of Garden City approved by a more than three-fifths majority vote a proposition for the bonding of the village for the construction and laying of certain water mains. Pursuant to this authorization by the electors, bonds were issued and water mains were constructed. Subsequently, additional water mains were laid from time to time. At the present time, approximately 85 per cent. of the city is serviced by existing water mains; and it is stipulated by counsel that there is no previously issued bond outstanding as a lien on the water supply system or its revenues. But there are no sewers within the city, except a trunk line sewer built by Wayne county. The sanitary sewage in the city is now taken care of by septic tanks.

On June 23, 1941, the council of the city adopted Ordinance No. 46 pursuant to the provisions of Act No. 94, Pub. Acts 1933, as amended by Act No. 66, Pub. Acts 1935, and Act No. 2, Pub. Acts 1939, which provides in part:

‘Any * * * city * * * is authorized to purchase, acquire or construct * * * sewage disposal plants and systems, water supply and/or water supply systems * * *.’ Sec. 1.

‘This act shall be construed as authorizing the issuance of such bonds provided for herein without submitting the proposition for the approval of same to the voters of the borrower. * * *’ Sec. 33.

The ordinance provides for the construction of between five and six miles of additional water mains, and between 17 and 18 miles of sewers in the city; and for the financing of the sewers and additional water mains by the issuance of $400,000 of revenue bonds to be payable solely from revenues derived from the operation of the combined water supply and sewage disposal system of the city, but which are not to be general obligations or indebtedness of the city.

The electors did not vote upon the sewer improvement contemplated in the ordinance nor upon the question of the issuance of the revenue bonds. Subsequent to the adoption of the ordinance, the city sold the bonds which, however, have not been executed or delivered. The defendant, city clerk, who is required to sign the bonds, has refused to do so until the question of the necessity of an electoral vote upon the question of acquiring said improvements under article 8, § 25 of the Michigan Constitution has been determined by the court.

The question in issue is whether the sewer improvement provided for in Ordinance No. 46 passed by the city council pursuant to the provisions of Act No. 94, Pub.Acts 1933, as amended, is a ‘public utility’ within the meaning of that term as used in article 8, § 25 of the Constitution.

Article 8 of the Constitution provides as follows:

‘Sec. 22. Any city or village may acquire, own, establish and maintain, either within or without its corporate limits, parks, boulevards, cemeteries, hospitals, almshouses and all workds which involve the public health or safety.

‘Sec. 23. Subject to the provisions of this constitution, any city or village may acquire, own and operate, either within or without its corporate limits, public utilities for supplying water, light, heat, power and transportation to the municipality and the inhabitants thereof; * * *.

‘Sec. 24. When a city or village is authorized to acquire or operate any public utility, it may issue mortgage bonds therefore beyond the general limit of bonded indebtedness prescribed by law: Provided * * *.

‘Sec. 25. * * * Nor shall any city or village acquire any public utility or grant any public utility franchise which is not subject to revocation at the will of the city or village, unless such proposition shall have first received the affirmative vote of three-fifths of the electors of such city or village voting thereon at a regular or special municipal election; * * *.’

It is urged by defendant that the proposed sewer system is a public utility; and that the electors must first approve the acquiring of such sewers pursuant to section 25 of the Constitution before the bonds may be legally issued.

It is urged by plaintiffs that the words ‘any public utility’ in the above section 25 refer only to the public utilities enumerated in the preceding section 23; that a vote of the electors is required only when a city desires to acquire ‘public utilities for supplying water, light, heat, power and transportation;’ and that a vote of the electors is not required when a city desires to acquire sewers which are authorized under the above mentioned section 22.

In the recent case of Young v. City of Ann Arbor, 267 Mich. 241, 255 N.W. 579, 582, we had under consideration the constitutionality of Act No. 94, Pub. Acts 1933, and it was contended that a sewage disposal plant was a public utility and not included within the provisions of article 8, § 23 and therefore the city had no power or authority to construct it. The court said:

‘It will be conceded that a sewage disposal plant is a work which involves the public health and safety and a city has express constitutional authority to establish and maintain such plant. * * *

‘Whether a sewage disposal plant is or is not an internal improvement does not affect the validity of the statute in question, for the reason that the...